The right to full answer and defence by cross-examining the complainant in sexual assault cases is fundamental.
The accused, R.V., in the present case was charged with sexual interference and sexual assault. The complainant alleged that the accused sexually assaulted and interfered with her due to which she got pregnant. The primary issue in the present case was whether in sexual assault cases the complainant can challenge the crown’s evidence by cross-examining.
Section 276 of the Criminal Code permits the other party to present evidence against the complaint of her prior sexual activities. However, the evidence is never considered to prove that the complainant is less worthy, or that she is likely to have consented to the intercourse. It is the right of the accused to challenge such evidence and to get full answer and defence. Full answer and defence are considered as principle of fundamental justice given under section 7 of the Charter. An important facet of full answer and defence is cross-examination of the complainant to analyse the circumstantial evidence and the truth by questioning (i) complainant’s knowledge about sexual activities that can cause pregnancy; (ii) did she in reality engage in such sexual activity.
However, the court stated that the right to cross examine is not unlimited. An important condition is that the cross-examination questions should be a) relevant; and b) their prejudicial effect must not impact their probative value. Questioning the complaints sexual history may be intriguing and may raise various dignity and privacy concerns, but as the right to full answer and defence will implicate the right to raise a reasonable doubt, cross examination of accused becomes a fundamental right. It was also held that while the right is fundamental the court has to make it mandatory to view the cross examination and minimize its negative impacts on the complainant. Further, in cases where the crown did not have any medical evidence to support the complainant’s testimony, the accused has a right to cross-examine.
The accused’s request to cross examine in turn was capable to satisfy the “specific instances” condition under s. 276(2)(a). The cross examination is basically needed to find out that the pregnancy was due to some other sexual intercourse. However, the court held that it in this case it would not have changed the fact that the accused sexually assaulted and interfered with her.
Further the court held that Section 669.2 of the Criminal Code does not disregard the general rule of re-considering the rulings by a trial judge unless there is a material change in the circumstances.
Section 686(1) (b)(iii) of the Criminal Code allows the court to order for a new trial if they believe that there was no substantial wrong or miscarriage of justice have occurred, unless:
(1) when an error is trivial or harmless;
(2) where the evidence proves beyond any reasonable doubt the guilt of accused.
Although the court held that the right to cross-examine is a fundamental right and should have been given to the accused, it was also held that the nature and scope of cross-examination that actually held was also broad and broader right would not have affected the decision in this case.